ORDER DENYING RESPONDENT'S
PRE-HEARING
MOTION TO DISMISS THE COMPLAINT AND
GRANTING, IN PART, RESPONDENT'S SECOND MOTION
TO MAKE THE COMPLAINT MORE DEFINITE AND
CERTAIN

Northwest United Educators, Clear Lake School District Teachers (Complainant) filed
a
complaint with the Wisconsin Employment Relations Commission on February 6, 2006,
alleging that
the Clear Lake School District (Respondent) had committed prohibited practices in violation
of Sec.
111.70(3), Stats. On February 23, 2006, Respondent filed a Motion to Make the Complaint
More
Definite and Certain. On March 1, 2006, the Commission appointed Coleen A. Burns, as
Examiner,
to make and issue Findings of Fact, Conclusions of Law and Order in the matter of the
prohibited
practices complaint filed by the Complainant. On March 10, 2006, a hearing was scheduled
for
April 14, 2006. On March 13, 2006, Complainant responded to the Motion to Make the
Complaint
More Definite and Certain by

Dec. No. 31627-A

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Dec. No. 31627-A

filing an amended Complaint. On March 27, 2006, Respondent filed a second Motion
to Make the
Complaint More Definite and Certain and a Motion to Dismiss. Complainant was provided
with an
opportunity to respond to these two Motions by April 5, 2006. The Examiner, having
considered
the record to date, including arguments, makes and issues the following

ORDER

Respondent's pre-hearing Motion to Dismiss the Complaint is denied and
Respondent's
Second Motion to Make the Complaint More Definite and Certain is granted, in part.

Dated at Madison, Wisconsin, this 7th day of April, 2006.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Coleen A.
Burns, Examiner

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Dec. No. 31627-A

NORTHWEST
UNITED EDUCATORS

MEMORANDUM ACCOMPANYING ORDER
DENYING RESPONDENT'S PRE-HEARING MOTION
TO DISMISS THE COMPLAINT
AND GRANTING, IN PART, RESPONDENT'S SECOND MOTION
TO MAKE THE COMPLAINT MORE DEFINITE AND CERTAIN

Sec. 227.01(3), Stats., defines a "Contested case" to mean "an agency
proceeding in which the assertion by one party of any substantial interest is denied
or controverted by another party and in which, after a hearing required by law, a
substantial interest of a party is determined or adversely affected by a decision or
order."

The Commission is an "Agency" under Sec. 227.01(1), Stats., thus making
this proceeding an "agency proceeding." To be a contested case under Sec.
227.01(3), Stats., the proceeding must involve a controverted, substantial interest
which will be determined after a hearing required by law.

. . .

Chapter 227 does not provide a summary judgment procedure. The right to
hearing is explicit, and the dismissal of a contested case prior to evidentiary hearing
is not. Pre-hearing dismissal of a contested case is, then, an uncommon result:

Dismissal prior to
evidentiary hearing would be proper if based on
lack of jurisdiction, lack of timeliness and in certain other cases . . .
(I)t would be a rare case where circumstances would permit dismissal
of the proceedings prior to the conclusion of a meaningful evidentiary
hearing on other than jurisdictional grounds or failure of the
complaint to state a cause of action. 1/ (cite omitted)

As Examiner McLaughlin also stated, the Commission has reflected this reluctance to
deny
hearing in it own case law:

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Dec. No. 31627-A

Because of the drastic consequences of denying an evidentiary hearing, on a
motion to dismiss the complaint must be liberally construed in favor of the
complainant and the motion should be granted only if under no interpretation of the
facts alleged would the complainant be entitled to relief. Unified School District
No. 1 of Racine County, Wisconsin, Dec. No. 15915-B (Hoornstra with final
authority for WERC, 12/77), at 3; Racine Unified School District, Dec.
No. 27982-B (WERC, 6/94).

The complaint, as amended on March 13, 2006, alleges that Respondent has engaged
in
conduct that violates Sec. 111.70(3)(a)1,2,3 and 4, Stats. The complaint states a cause of
action over
which the Commission has jurisdiction and may grant relief.

Respondent has filed an Answer in which it denies that it has violated
Sec. 111.70(3)(a)1,
2, 3 and 4, Stats., as alleged by Complainant. Complainant's claim that Respondent has
engaged in
conduct that violates MERA presents a contested case requiring a full hearing on the
pleadings.
Respondent's Pre-hearing Motion to Dismiss the Complaint is denied.

Sec. ERC 12.03, Answer to complaint, Wis. Admin. Code, provides that a
respondent may,
by motion, seek a more definite and certain statement of the complaint where it is alleged to
be so
indefinite as to hamper a respondent's ability to prepare an adequate answer. The
Respondent
alleges that the complaint continues to assert legal conclusions, not fact, which makes it
impossible
for Respondent to defend.

1) on or about February 1, 2006, its agent
Mark Heyerdahl threatened to not
bargain collectively with the representative chosen by the membership and
threatened and coerced the Union by threatening not to bargain in good faith
and, on or about November 21, 2005, attempted to dominate and interfere
with the administration of the Union by refusing to reduce an agreed change
in the work calendar to writing and threatening to repeal an agreed change in
the work calendar if the Union requested the agreement in writing;

2) on or about November 15, 2005, the School District of Clear
Lake bargained
directly with the members of the bargaining unit regarding securing a change
in the work calendar.

With respect to the conduct that is alleged to have occurred on or about February 1,
2006,
the Examiner agrees that, in order to prepare an adequate answer, Respondent is entitled

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Dec. No. 31627-A

to have the name of the Complainant bargaining representative with whom Heyerdahl
is alleged to
have threatened to not bargain collectively. The Examiner disagrees with Respondent's
assertion
that the complaint needs to be more detailed with respect to how this individual was
threatened.

With respect to the conduct that is alleged to have occurred on or about November
15, 2005,
the Examiner agrees that, in order to prepare an adequate answer, Respondent is entitled to
have the
name(s) of the individual(s) in the District who are alleged to have bargained directly with
members
of the bargaining unit.

The Examiner disagrees with Respondent's assertion that the complaint must provide
more
detail with respect to how the school year calendars were developed; when the" agreed
change" had
been ratified by the NUE Board of Directors and Board of Education; how the November 21
conversation constituted domination or interference; who was allegedly threatened on
November 21,
2005 or how that individual was threatened.

Respondent's Second Motion to Make the Complaint More Definite and Certain is
granted
in part. At the hearing of April 14, 2006, Complainant will be required to Make the
Complaint More
Definite and Certain by identifying (1) the Complainant bargaining representative with whom
Heyerdahl is alleged to have threatened to not bargain collectively on or about February 1,
2006 and
(2) the name(s) of the individual(s) in the District who are alleged to have bargained directly
with
the members of the bargaining unit on November 15, 2005. Respondent will then be
permitted to
amend its Answer to the complaint in response to these identifications. Inasmuch as
Complainant's
presentation of its case will be continued on May 17, 2006, Respondent will have an
adequate
opportunity to defend against the allegations contained in the complaint, as amended at
hearing.